Jordan v. City of Greenwood Court Opinion
Public Court Documents
August 8, 1983

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Case Files, Thornburg v. Gingles Working Files - Schnapper. Jordan v. City of Greenwood Court Opinion, 1983. 8746b9d0-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/64f27f73-514a-414e-b712-0367a9cb6671/jordan-v-city-of-greenwood-court-opinion. Accessed April 29, 2025.
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tion law, it was Gray's statutory employer. Gray opposed the motion arguing that un- der the terms of the OutBr Continental Shelf Lands Act, 4il U.S.C. $ 1833(b), the longshoremen'g and Harbor Workers' Com- pensation Act, 83 U.S.C. $ 901 et seg., was made applicable to his situation. (This is the same argument which the Benefits Re- view Board approved below in Herb's Weld- ing v. Gray, but which we found unneces- sary to reach). The district court in Gray v. Chevton, No. ?G{708 (W.D.La.19?8), grant- ed the Bummary judgment and dismissed the suit. The judge concluded that the Outer Continental Shelf Lands Act did not spply; that louisiana law applied; that Chevron was Gray's statutory employer, and that as to Chevron, Gray's sole remedy was workers' compensation benefits. This court affirmed. Herb's Welding acknowledges that the law of the case doctrine does not apply. However, it argues that if the LHWCA applies to Gray's accident, then Chewon could not assert a statutory employer de- fense since such immunity is not available under the federal act. Our previous decision in Gray v. Chevron does not contrcl our present case. The Gray v. Chevron opinion was rendered in 1978. It was affirmed in 1981 on the nar- row issue of whether the district court cor- rectly interpreted lnuisiana's workers' com- pensation law in light of this court's deci- sion in Blanchard v. Engine and Gas bm- pressor Serviceg Inc., 613 F.2d 65 (5th Cir. 1980). Today's case, Ilerb's Welding v. Gray, is based on an inconsistent premise that the Longshoremen's and Harbor Work- ers' C,ompensation Act not the Iouisiana Workmen's Compensation Act is applicable. Two facts, however, persuade us that Gray v. Chevron should not control here. First, Gray v. Chevron held that the Outer Conti- nental Shelf l,ands Act did not extend LHWCA coverage to Gray. That is not eontrary to our present decision. It was not asserted at that time that the LHWCA could apply independerl of the Lands Act. Second, since the inirial decision, the LHWCA has undersr,:.: extensive interpre- tation. We must n.,u ...x5i6lsr the LHWCA a JOiDAN v. CITY OF GBEEI{WOOD, nflSs. Cl*er7ll Frd667 (l$ll) ffiT in light of Dircctnr, Office of Workerc' hmpensation Programs v. Perini, - U.S. -, 108 S.Ct, 634, 74 L.EA.Zd 465 (1983); Ward v. Dircctor, Office of Workerc' Com- pnsation Pttgtzms,6&1 F.2d ll14 (5th Cir. L982), cert. denied, - U.S. -, 108 S.Ct. 815,74 L.Ed.zd 1013 (1983); and Boudreaux v. American Workover, fnc., 680 F.2d 1034 (5th Cir.1982) (en banc), ecrt. denied, -u.s. -, 108 s.cr. 815, ?4 L.Ed.zd 1014 (1983). Given the guidance of these subse- quent precedents it is obvious that the LHWCA on its own terms applies to Gray. This position was neither advocatpd nor de- cided in Gray v. Chevron. The petition for panel rehearing is DE- NIED and no member of this panel nor Judge in active service on the Court having requested that the Court be polled on rehearing en banc, the suggestion for rehearing en banc is also DENIED. David JORDAN, et al., Plai ntiffs-Appellan ts, v. CITY OF GREENWOOD, MISSISSTPPI, et al., I)efendants-Appellees. No. 82-4150. United States Court of Appeals, Fifth Circuit. Aug. 8, 1983. a In class action against city, its mayor, city commissioners, and city municipal elec- tion commission and its members for al- leged racial discrimination in adoption and maintenance of at-large city elections for offices of mayor and commissioners, the United States District Court for the North- em District of Mississippi, William C. Keady, Chief Judge, 534 F.Supp. 1351, en- 668 tered judgment in favor of defendants' Plaintiffs appealed. In the interim, Voting Rights Act was amended, which amend- ment city contended on appeal was uncon- stitutional and plaintiffs sought to enforce' The Court of Appeals, Clark, Chief Judge, held that where, after judgment was en- tpred in favor of city, Voting Rights Act was amended to proscribe not only inten- tional discrimination, but also any voting practice that results in denial or abridg- ment of right to vote on account of race or color, the Court of Appeals would not de- cide constitutional issue but would remand for reconsideration by the District Court, to which the standard declared by the amend- ment had not been presented in first pro- ceeding, since a finding on remand that the city voting scheme was not violative of new amendment would render constitutional is- sue moot. - Vacated and remanded. l. Constitutional [,aw e46(l) If constitutional question is presented on appeal, it should not be addressed if there is a possibility that the case can be decided on narrower statutory grounds, for if the lower court finds the statutory ground dispositive, resolution of the consti- tutional issue will be obviated' 2. Constitutional Law e=46(f) Federal Courts e939 Where, after judgment was entered in favor of city in class action challenging city's at-large commission form of govern- ment under the Thirteenth and Fourteenth Amendments and the Voting Rights Act, the Act was amended to proscribe not onl-t" intentional discrimination, but also any vot- ing practices that result in denial or abridg- ment of right to vote on account of race or color, which amendment city contended on appeal was unconstitutional and plaintiffs sought to enforce, the Court of Appeal-s wouid not decide constitutional issue but woukl remand for rt'ct'nsideraticin br thc district court, to rtiijr'il the standartl rlt'- clared br th, atr t. :l I i :ll had llol lrt-:i':r presented ir, fir:t 1'','r ''''':ttrg. sincu a f ind- ?U FEDEfiAL REPORTE& 2d SERIdS : ing on remand that the city voting scheme was not violative of new amendment would render constitutional'issue moot' U'S'C'A' Const.Amends. 13, 14; Voting Rights Act of 1965, $ 2, 42 U.S.C.A. S 1973. Ne' 8n) alr @ PUI bS wh ,l ter pri: 8bc of iss por me pr0 rig to pr0 Thr mil ner gT€ t€€ u8 rec 88 isr fur sta I tsl de< 8ec me *: rm cor oul tio: uni Mc 1& I BT) Au 46( J., es tio Willie J. Perkins, Sr., Solomon C' Os- borne, North MS. Rural Legal Services, Greenwood, Miss., Leonard McClellan, Ox- ford, Miss., for plaintiffs-appellants' Patricia M. Hanrahan, Washington, D'C', amicus curiae, Lawyers' Comm' for C'R' Under Law. Jessica Dunsay Silver, Dept' of Justice, Washington, D.C., for U.S., amicus curiae' Billy B. Bowman, Greenwood, Miss', for defendants-aPPellees' Appeal from the United States District Couii fo. the Northern District of Missis- sippi. Before CLARK, Chief Judge, THORN- BERRY anrt RANDALL, Circuit Judges' CLARK, Chief Judge: David Jordan filed suit on behalf of all black resiclents of Greenwood, Mississippi, challenging that city's at-large commission form oi government under the thirteenth and fourteenth amendments and section 2 of the Voting Rights Act,42 U'S'C S 1973' The district court found that Cit.v of Mobile v. Bolden, 446 U.S. 55, 100 S'Ct' 1490' 64 L.Ed.2d 4? (1980), required the plaintiffs to demonstrate that Greenwood's atJarge scheme was established or maintained for a discriminator)' purpose' 534 P'Supp' 1351' 1364 (N.D.Miss.1982)' The ccurt concluded that the plaintiffs had failed to make such a showing. Id. at 1368. Jgdgmqnt was en- tered for the CitY. Three months after the district court's decision was announced, an amendment to section 2 of ther Voting Rights Act was signe<i into law b1' the President' Tht' old .'e rsion of section 2 u'as nterelf il rr'i'itr';r:- ing of the fiftcenth anten<lt.tlellt' .l;''' l' rl' 416 U.S. at 61, 100 S.Ct at 1496, rr' 1,r'oscrilled onlf intenlionul <lisc'rri ' [:, legislative departure fiom the theory on which Bolden was decided. The parties and arnici agree that the in- tprvention of new section 2 presents the primary issue on appeal. But they disagree about the oours€ we should take. The City of Greenwood contends that new section 2 is an unconstitutional exercise of Congress's power to enforce the Civil War amend- ments. According to the City, a law that proscribes unintentional denial of voting rights is neither necessary nor appropriate to effectuate constitutional provisions that proscribe on)y intentional discrimination. The plaintiffs and amicus Lawyers' Com- mittee for Civil Rights Under Law defend new section 2 as a valid exercise of Con- gress's extensive power to enforte the four- tpenth and fifteenth amendments and urge us to find a violation on the basis of the record before us. The United States, also as amrcus curiae, asserts that new section 2 is constitutional but advises a remand for further proceedings in light of the new standard it establishes. For the reason outlined briefly below, we take a path not urged by anyone. We decline to reach the question whether new section 2 is constitutional, vacate the judg- ment of the district court, and remand for further proceedings. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitu- tionality . . . unless such adjudication is unavoidable." Spector Motor Serv., Inc. v. McLaughlin, S2S U.S. 101, 105, 65 S.Ct. 152, 154,89 L.Ed. 101 (1944). tll This tenet takes many forms. See generally Ashwander v. ?ennessee Valley Authority, 297 U.S. 288, 341+6, 56 S.Ct. 466,480-8?, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). For example, if a case rais- es both statutory and constitutional ques- tions, the inquiry should focus initially on i. 669 582, 99 S.Ct. 1355, 1364, 59 L.&1.2t 58? (19?9). Moreover, if a constitutional ques- tion is presented on appeal, it should not be addressed if there is a possibility the case can be decided on narrower statutory grounds on remand. Wnd v. Gargia,450 u.s. 261, 26ffi, 101 S.Ct. 1097, 110H1, 67 L.Ed.2d 220 (1981). See also Elkins v. Mor- eno, 435 U.S. M7, 661-62, 98 S.Ct. 1338, 1346-47,55 L.Ed.zd 614 (1978) (certifying a possibly dispositive question of state law to the Court of Appeals of Maryland); White v. United States Hpe & Foundry Co., M6 F.2d 203, 206-n7 (Sth Cir.1981) (reversing the district court for reaching a novel thir- teenth amendment claim where the case might have been resolved on statutory grounds). If the lower court finds the stat- utory ground dispositive, resolution of the constitutional issue will be obviated. See Alexander v. I-auisiana,405 U.S, 6?5, 684, 92 S.Ct. lm, t227,31 L.Ed.2d 536 (1972) ("The State may or may not recharge peti- tioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again"). 12) This case fits squarely within these principles. On remand, should the district court find that Greenwood's scheme does not violate new section 2, the constitutional issue would become moot. If this occurs, our restraint will have avoided the needless resolution of an important constitutional question. An additional consideration makes appli- cation of this doctrine particularly appropri- ate in the conteXt of this case. This case was tried and decided in the district court without the benefit of new section 2. The plaintiffs attempted to prove that Green- wood's at-large s1'stem was established or maintained for a discriminatorl' purposL. The Citr- tried to shoq' it u'as n,.)i. Thr court decided thr ca..c on this issire . Nr, part)' ast(e.i th' c, i:",. to eonsidc' r, hr lhi'' JORDAN v. CITY Or GREEI{WOOD, MISS. t Cho !! 7l I FJd 087 o$lt) New section 2, on the other hand, 6utlaws the statutory question.' 8.g, Hanis v. any voting practice that "results in" a deni- Mcfue,448 U.S. 297, 80H)?, 100 S.Ct. 26?1, al or abridgement of the right to vote on 268;2, 6 L.Ed.2d 784 (1980); Bolden, M6 account of race or color. This change from U.S. at 60, 100 S.Ct. at'1495; New York purpos€ to effect reprrsents a significant Transit Authoity v. Bea?8r,440 U.S. 568, i.t .-&",-- 670 7u FEDERAL REPORTE& I ? 2d SERIES ty and other university and board of trus- tees' officials requesting determination that he was a tenured professor with university, reinstatement, back pdy and punitive dam- ages, and a hearing to clear name for al- leged damage to reputation incurred during termination. The Unihd States District Court for the Western District of Louisiana, Earl E. Veron, J., entered summary judg- ment in favor of defendants on all issues, and an appeal was taken. The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) assistant professor's mere subjec- tive expectancy of continued employment, even though he had not attained required years of service for tenure, did not give him constitutionallv protected property interest necessar)' to invoke Fourteenth Amend- ment's procedural due process provisions in absence of any evidence to indicate that universitl' utilized a de facto tenure policv generally or in regard to assistant profes- sor; (2) universitl' could deny tenure to assistant professor because of desire to up- grade department b1- replacing assistant professor, who held onlv a master's degree, with a teacher holding a doctorate, because of complaints about a-ssistant professor's of- ficial performance, and because of belief that assistant professor's effectiveness a^s a teacher was on the u'ane u'ithout violating an5 constitutional rights of assistant profes- sor; (3) universitl'tenure requirements did not violate Fourteenth Amendment; and (4) substantial fact issue existed with re- gard to assistant professor's due process claim of deprivation of a liberty interest in continued emplol'ment, precluding summa- ry judgmcnt against a-qsistant professor. Affirmed in part and remanded. l. Constitutional [an' a27?e) Assistant professor's mere subjective expectancy of continued employment, even though he had not attained required 1,ears of service for tenure, did not give him con- stitutionally protected property' interest necessar]' to invoke Fourteenth Amend- ment's procedural due process provisions in absence of any evidence to indicate that the atJarge scheme had "resulted in" in- fringement of black voting rights. As the Supreme Court recently noted, "questions not raised below are those on which the record is very likely to be inadequate since it certainly was not compiled with those questions in mind." illinois v. Gates, -u.s. -, -, 103 s.ct. 2317, ?3?3, 76 L.Ed.2d 527 (1983) (quoting Cardinale v. Louisiana,394 U.S. 4:17, 4:i9, 89 S.Ct. 1161, 1L63, 22 L.Ed.2d 398 (1969)). The Court's statement is descriptive of this case. With- out adequate factual development we should be very hesitant to reach constitutional questions. W.E.B. Dubois Clubs of Amer- ica v. Clark,389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967) (cautioning against deciding important constitutional questions "devoid of factual context"). Failure to adhere to this principle risks "the framing of broad rules, seeminglv sensible on one set of facts, which may prove.ill-considered in other circumstances." Gates, - U.S. at -, 103 S.Ct. at 23%. Resolution of the important question of constitutional law presented by this appeal must await another day, if not an<lther case. VACATED AND REMANDED. George A. \I'ELLS, Plaintiff.Appellant, v. Jack V. DOLAND, et al., Defendants-Appellees. No. 83-4005 Summary Calendar. United States Court of Appeals, Fifth Circuit. Aug. 8, 1983. Uniltrs:',-, assistant professor filed sec- tior 19811 ,.. ,:rsi 1n't-sidcnt of universi- 4. Co II actua assisl not r uncon . Amen since quirec dens i -\. menta E. Cot N constii for te ' ,, :.: --"rinilLi.&.- unl\ gen( 80r. 2.c 8nt depz sor, teac coml cial r assis teacl any I sor. 3. Cr Cr I prior attai S€rVir ant ; secut pay 0 sever Louis cy in and i staff, teent antee